A.S Venkatachalamoorthy, J.
1. The prayer that is sought for in this Writ Petition is to call for the records relating to the Order dated 25.3.1999 passed by the 5th respondent/Tribunal in T.P No. 3091 of 1997 read with the Order dated 27.9.1990 in TNGST No. 584757 of 1989-90 issued by the 3rd respondent and quash the same and consequently direct the respondents to pass orders on merits after giving an opportunity of hearing to the petitioner in accordance with law.
2. The brief facts are as follows:-
The petitioner/Society is registered under the Pondicherry Co-operative Societies Act with its registered office at Pondicherry. The Society serves food and drinks to its customers. During 1989-90 the annual turnover was roughly about Rs. 98 lakhs. The 4th respondent herein passed the assessment order dated 27.9.1990 in form No. 19 for the assessment year 1989-90. A penalty under Section 12 (5) (iii) to the extent of Rs. 3,58,537 was also levied. On 5.11.1990, the petitioner addressed the Appellate Assistant Commissioner, Commercial Taxes, Cuddalore, requesting him to instruct the Deputy Commercial Tax Officer to withhold the Assessment orders and further action to recover the arrears, as the final exemption orders are awaited from the Government of Tamil Nadu. Another communication dated 8.11.1990 was sent to the Assistant Commissioner, Commercial Taxes, Cuddalore with a similar request. The Assistant Commissioner, Commercial Taxes by a Communication dated 5.2.1991 informed the petitioner that the Assistant Commissioner, Commercial Taxes, Cuddalore is not the appellate authority and that the petitioner could seek legal remedies as per law. Thereafter, the petitioner filed an appeal under Section-31 in Form No. 3 on 1.2.1991 The appellate authority on 8.2.1991 passed an order, dismissing the appeal on the ground that the same was filed with a delay of 93 days from the date of actual due. Aggrieved by the said Order, the petitioner filed an appeal before the Sales Tax Appellate Tribunal ie., the 2nd respondent herein. By an Order dated 19.9.1991, the 2nd respondent dismissed the said appeal viz., Tribunal Appeal No. 271 of 1991 holding that the Appellate Assistant Commissioner, Commercial Taxes, Cuddalore is perfectly justified in rejecting the said petition. Being aggrieved by the said Order, the petitioner filed W.P No. 14886 of 1991 before the High Court, Madras. Subsequently, the Appeal was transferred to the Tamil Nadu Taxation Special Tribunal and renumbered as T.P No. 3091 of 1997. By an order dated 25.3.1999, the Special Tribunal also dismissed the petition, holding that the appeal filed by the petitioner before the Appellate Assistant Commissioner was barred by limitation since according to the provisions of the Act any delay beyond 30 days could be excused only for a further period of 30 days, whereas the petitioner had filed the appeal with a delay of 93 days. The present Writ Petition has been filed against the said Order of the 5th respondent viz., the Taxation Special Tribunal.
3. A counter affidavit has been filed on behalf of the respondents to the effect that the Appellate Assistant Commissioner as well as the Tribunal rightly declined to condone the delay in filing the appeal as otherwise it will be clearly violative of the provisions of the Act. According to the respondent, the penalty under Section 12 (5)(iii) of the TNGST Act was levied on the ground that the petitioner had failed to disclose the turnover relating to the sales of food and drinks in their hotel in the return submitted before the authority though the figures were available in their Accounts. Further, it is contended that the Appellate Authority levied only the minimum penalty of 50% of the difference in tax payable on the turnover disclosed in the return and that was determined by the assessing authority. The order levying penalty cannot be said to be illegal.
4. Learned counsel appearing for the petitioner contended that the assessment order was received by the petitioner on 6.10.1990 and the petitioner filed the appeal before the Appellate Assistant Commissioner on 5.11.1990, however as the same was not in form, the appeal in the prescribed form complying with all the requirements was filed on 1.2.1991 Hence, in those circumstances, it cannot be said that there was delay in filing the appeal particularly when, for the communication of the petitioner to the Appellate Assistant Commissioner dated 5.11.1990, no reply was received. Alternatively, it is contended that even assuming the appeal was filed only on 1.2.1991, considering the fact that the State Government granted exemption from payment of sales tax with effect from 1.4.1990 and also in view of the fact that the petitioner is a cooperative society, this Court in the interests of justice can in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India direct the appellate authority to take the case on file and dispose it of on merits.
5. Learned counsel appearing for the Department contended that on 5.11.1990, the petitioner only sent a communication to the Appellate Assistant Commissioner, Commercial Taxes, Cuddalore to withhold the assessment orders and further action to recover the arrears as final exemption orders are awaited from the Government and that the communication cannot be, by any stretch of imagination, termed or called as an appeal. Learned Counsel further contended that Section 31 of the TNGST Act makes it very clear that the appeal has to be filed within thirty days and a delay of 30 days alone can be condoned. This Court may not in exercising its discretionary powers under Article-226 of the Constitution of India pass orders as prayed for by the petitioner as otherwise the same would be violative of the principles of the Act.
6. First, let us proceed to consider the various basic facts before venturing to examine the legal position and whether the prayer of the petitioner can be granted.
7. The Deputy Commercial Tax Officer passed the assessment order in Form No. 19 and the same bears the date 6.10.1990 In the very first page, before the commencement of the order as such, under the heading NOTE, the following is mentioned.
“An appeal against this order lies before the Appellate Assistant Commissioner of Commercial Taxes, Cuddalore within 30 days of receipt of this order”.
Section-31 of the Tamil Nadu General Sales Tax Act reads thus:-” Appeals To The Appellate Assistant Commissioner:-
[1] Any person objecting to an order passed by the appropriate authority under (Section 4-A), Section 12, Section 14, Section 15, sub-sections(1) and (2) of Section 16, Section 18 (sub-section (2) of Section-22, Section 23 (or Section 27) other than an order passed by an Assistant Commissioner) may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner (having jurisdiction):
Provided that the Appellate Assistant Commissioner may admit an appeal presented after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period:
Provided further that in the case of an order under Section 12, Section 14, Section 15 or subsections (1) and (2) of Section 16 no appeal shall be entertained under this sub section unless it is accompanied by satisfactory proof of the payment of tax admitted by the appellant to be due or of such instalment thereof as might have become payable as the case may be.
[2]The appeal shall be in the prescribed form and shall be verified in the prescribed manner.”
From the above provision, it is clear that the appeal must be filed in a prescribed format within thirty days from the date of receipt of the assessment order. The Appellate Authority is vested with powers only to condone the delay of 30 days in proper cases where the appellant shows sufficient cause. If one looks at the Communication dated 5.11.1990 sent by the petitioner to the Appellate Assistant Commissioner, it could be noticed that certainly it is not an appeal against the assessment order. If one carefully goes through the said communication, it could be seen that nowhere it is stated that it is an appeal and that the order of the assessment officer has to be set aside. Added to this, the same was not in the prescribed format. The provision under Section 31 (2) of the TNGST Act as could be seen, clearly lays down that the appeal shall be in the prescribed form and shall be verified in the prescribed manner. At the risk of repetition, it may be stated that the communication dated 5.11.1990 is not an appeal for the reason that the same has not been filed in a prescribed form with proper verification and there is no prayer to set aside the order of the Assessing Authority. In fact, there is not even an allegation in the body of the communication that the assessment order is erroneous for some reason or other and the same is liable to be set aside. Once this Court comes to this conclusion, then, the submission of the petitioner that the appeal was filed even on 5.11.1990 and as it was not in the prescribed form, another appeal was sent on 1.2.1991 has to fail.
8. Then comes the question as to whether the delay in filing the appeal can be condoned. Admittedly, the assessment order was received on 6.10.1990 and the last date for filing the appeal was 5.11.1990, whereas, the appeal was filed only on 1.2.1991 and thereby there is a delay of 93 days in filing the appeal. While it is the contention of the petitioner that this Court has ample powers under Article 226 of the Constitution of India to condone the delay and direct the appellate authority to dispose of the matter on merits, the Department would contend that once the statute prescribes outer limit for condoning the delay, any delay beyond that period cannot be condoned.
9. We have already extracted Section-31 of the Tamil Nadu General Sales Tax Act. 1959. The said Act clearly lays down that an appeal has to be filed within thirty days from the date of receipt of the order and that an appeal may be admitted beyond that period if the appellate authority is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period.
10. Reference to a few decisions and provisions of the Act would clarify the effect and consequence of the Statute positively laying down the time limit during when the delay can be condoned. In Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P AIR 1976 S.C.2161, the Supreme Court was considering Section 58 of the Motor Vehicles Act. The Supreme Court has ruled as under:-
“Section 58 of the said Act provided that a permit may be renewed on an application made for such purposes, provided that the application for renewal of a permit shall be made (a) in the case of stage carriage permit or public carrier's permit, not less than 120 days before the date of expiry; and (b) in any other case not less than 60 days before the date of its expiry. Sub-section (3) of that Section further provided that:
“Notwithstanding anything contained in the first proviso to sub-section(2), the Regional Transport Authority may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than 15 days after the said last date and is accompanied by the prescribed fee.”
Thus, sub-section(3) vested in the Regional Transport Authority a power to entertain an application for renewal of a permit even if it is beyond time, but in that case the time should not be more than fifteen days. The question for consideration was, whether sub-section (3) could be said to expressly exclude the provisions of Section-5 of the Limitation Act which gives unlimited power to the Court or a Tribunal to excuse the delay irrespective of the number of days of delay? Considering this question, the Supreme Court held:
“It is therefore, clear that sub-section (3) of Section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time-limit specified in the proviso to sub-section (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now, the question which arises is does Section 5 of the Limitation Act, 1963 apply so as to empower the Regional Transport Authority, for sufficient cause to entertain an application for renewal even where it is delayed by more than 15 days? Section 29, subsection (2), of the Limitation Act, 1963 makes Section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was sub-section (3). Does subsection (3) expressly exclude further extension of time under Section 5? If it does, then Section 5 cannot be availed of by the appellant for condonation of the delay. Subsection (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in subsection (5) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days.”
11. It has to be noted that even though in the provisions of the Act (Section 58 of the Motor Vehicles Act of Uttar Pradesh), the wordings “condonable only if it is of not more than 15 days” are not there, the Supreme Court so held on the basis of the wordings employed in the provisions of the Act, which read thus:-
“may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than 15 days after the said last date.”
12. The next decision is the one reported in K. Ganesh v. State Of Tamil Nadu, 1988 STC (68) 84. That was a case where a petition was filed to condone the delay of 211 days in filing the Tax Case Revisions against the order of the Sales Tax Appellate Tribunal, Coimbatore. The Revisions were filed under Section 38 of the Tamil Nadu General Sales Tax Act. According to Sub-section-1 of Section-38, a petition can be preferred to the High Court within 90 days from the date of which copy of the order is served. By virtue of the 8th Amendment Act 1986 which came into effect on 15.12.1986, the High Court may within a further period of forty-five days, admit a petition preferred after the expiration of the said period of ninety days, if it is satisfied that the petitioner had sufficient cause for not preferring the petition within the said period. In the said Ruling, a Division Bench of this Court held that the period prescribed in the statue (local law) is clear and that further Section 29 of the Limitation Act specifically provided that Sections 4 to 24 would apply only insofar as and to the extent to which they are not expressly excluded by such special or local law. The Court, in that case, ruled that there is an express exclusion of Section 5 of the Limitation Act.
13. The next ruling that can be usefully referred to is the one reported in Kanaka Durga Agro Oil Products Ltd. v. Commercial Tax Officer. Benz Circle. Vijayawada and another, 2000 STC (119) 387. That was a case arising under Andhra Pradesh General Sales Tax Act. In that case, the petitioner agreed for the proposed assessment and gave a letter of consent to that effect. However, long thereafter, the petitioner filed an appeal against the said assessment order with a delay of 533 days. The assesses in that case raised a contention that a turnover of Rs. 76,72,260 representing the sale of oil extracted from oil cakes was subjected to a higher rate of tax unlike oil extracted from oil seeds, on the basis of the decision in Rajashree Oils & Extractions' Case, 1998 (111) STC 668 (AP) [FB] in which entry 24 [a] of the First schedule to the Andhra Pradesh General Sales Tax Act, 1957 was declared unconstitutional. The appellate authority dismissed the appeal on the ground of delay. The Court ruled as under:-
“If the special statute prescribed a particular period of limitation for preferring the appeal, the appeal has to be necessarily filed within that date. If there is a provision for condonation of delay and sufficient cause is shown, the appellate authority can condone the delay if it is satisfied with the reasons for the delay. The proviso to Section 19 [1] as it originally stood empowered the appellate authority to admit an appeal after a period of 30 days, if it is satisfied that the dealer had sufficient cause for not preferring the appeal within the prescribed period of 30 days subject to the payment of the admitted tax due. Under the amended provision, the delay can only be condoned up to a further period of 30 days.”
14. In a recent Judgment, the Supreme Court of India, in Union Of India v. Popular Construction Co.. 2001 (4) CTC 213 considered Section 34 of Arbitration and Conciliation Act, 1996 and ruled that when the statue positively prescribes 90 days as time limit for the purpose of filing an application under Arbitration Act, that provision is to condone the delay for a further period of 30 days only and Section 5 of the Limitation Act does not apply in view of express exclusion and scheme of the Act and delay beyond a period of 30 days after expiry of the original period of limitation cannot be condoned. It will be useful to quote in verbatim, the exact wordings employed by the Supreme Court, which reads thus:-
“As far the language of Section 34 of 1996 Act is concerned, the crucial words are “ but not thereafter” used in the proviso to sub-section(3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase ‘but not thereafter’ wholly otiose. No principle of interpretation would justify such a result..”
15. Before we deduce the legal position, it is necessary to refer to the relevant provisions of the Act. Section-31 (1) of the Tamil Nadu General Sales Tax Act as it stood prior to the amendment reads as under:-
“31(1) Any person objecting to an order passed by the appropriate authority under (Section 4-A), Section 12, Section 14, Section 15, sub section (1) and (2) of Section 16, Section 18 (subsection (2) of Section 22, Section 23 (or Section 27) other than an order passed by an Assistant Commissioner) may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner (having jurisdiction)”
Subsequently, the first proviso clause came to be amended by way of Amendment Act and now the said proviso clause reads thus:
“Provided that the Appellate Assistant Commissioner may, within a further period of thirty days, admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period.”
So, while before the amendment, the provision was to the effect that the Appellate Assistant Commissioner was empowered to condone the delay for any number of days, provided he is satisfied that the appellant had sufficient cause for not presenting the appeal, by way of amendment the Legislature has now fixed time limit of 30 days and only for that period, the Appellate Assistant Commissioner has power to condone the delay. To contend that even after 30 days, the delay could be condoned would be only misreading the provision.
In the ruling reported in Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P, AIR 1976 SC 2161. which we have already referred, the wordings employed are:
“……if the application is made not more than 15 days after said last date.”
In Union Of India v. Popular Construction Co.., 2001 (4) CTC 213, the Law Makers have employed the following wordings:-
…it may entertain the application within further period of 30 days but not thereafter.
A question may arise whether the wordings employed in the first proviso to Section 31 viz., “within further period of 30 days” would have the same meaning. The answer can be only in the positive. Those words necessarily and only imply that the delay can not be condoned thereafter. Or in other words, in our considered view, the wordings in the first proviso clause should be understood to mean that the Appellate Assistant Commissioner will have the power to condone the delay only up to 30 days from the last date and not beyond that.
16. At this juncture, we deem it necessary to refer to a recent Division Bench Judgment of this Court in W.P No. 19488 of 2001 while considering an identical issue, ruled as under:-
“The discretion of the Court under Article 226 of the Constitution is to be exercised with caution, especially, in cases where the limitation provided in the statute is sought to be overridden even without examining the merits of the matter. The reason given by the assesses here for justifying the non filing of the appeal in time is that the person in charge of the Company was ill. That by itself cannot be a reason to hold that the law of limitation prescribed in the statute should not apply in the case of the assessee. A running business has many persons employed in it and those who are required to conform to the requirements of the Act as dealers must take necessary precaution to conform to it's requirements. The fact that the extent of the delay is short is also by itself not a good reason, as once the period of limitation prescribed by law is over, the bar which the statute itself imposes on the authority to entertain the appeal is not to be lifted merely because the period of delay is a short one. Any such approach would result in practically rewriting the statutory provision and adding a proviso providing for a further grace period beyond what the statute has prescribed
Article 226 of the Constitution cannot be used as a magic wand to get over the bar of limitation.
As far as the present case is concerned, the explanation that since the Government was considering the request for exemption the appeal was not filed in time, cannot be said to be an acceptable one.
17. Learned counsel for the petitioner in his endeavour to persuade this Court to accept his submission, relied on certain rulings which we presently refer to. Learned counsel first placed reliance on the ruling reported in the Coimbatore Murugan Mills Limited v. The Board of Revenue (commercial Taxes) Chepauk. Madras-s and another, 1970 STC (25) 469. In that case, the Board of Revenue passed an order and as per Section 37 of the Madras General Sales Tax Act, 1959, a period of 60 days was prescribed for preferring an appeal. The High Court, on the facts of that case, condoned the delay in filing the appeal and also held that bona fide prosecuting a writ petition against the order of the Board is a sufficient cause for the delay, in filing the appeal. The High Court in that case ruled that Section 5 of the Limitation Act, 1963 can be invoked to condone the delay in filing the appeal.
The decision relied on will not in any way come to the rescue of the petitioner since there the statute has not prescribed any outer limit for condoning the delay.
18. Learned counsel for the petitioner then referred to the ruling reported in Collector Land Acquisition Anantnag and another v. Mst.Katiji and others, 1987 STC (66) 228. We may straight away say that the said Ruling may not advance the case of the petitioner for the simple reason that it was a case arising under Land Acquisition Act and the Legislature has conferred the power to condone the delay by enacting Section 5 of the Indian Limitation Act in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The Supreme Court ruled that there is no warrant for according a step-motherly treatment when the “state” is the applicant praying for condonation of delay. It has to be borne in mind that applicability of Section 5 of the Limitation Act has not been excluded.
19. The attention of this Court was again drawn to another ruling reported in State of Tamil Nadu v. Saganlai, 1993 STC (88) 17. In that case, an application was filed under Section 36 (6) of the Tamil Nadu General Sales Tax Act, 1959, with an application under Section 5 of the Limitation Act, 1963, for condonation of delay of 7 years and 158 days in filing the Review Application. The tribunal, on the facts, condoned the delay. In a revision petition, the Revenue contended that there was no scope under Section 36 (6) to invoke Section 5 of the Limitation Act. The Court ruled as under :-
“The learned Additional Government Pleader (Taxes) contended that in the light of the language of Section 36 (6) of the Tamil Nadu General Sales Tax Act, there is no scope for condonation of delay or invoking Section 5 of the Limitation Act. In other words, the learned Additional Government Pleader contended that any review will have to be filed within a year and beyond that the Tribunal has no power to entertain the review application. We are unable to agree with the learned Additional Government Pleader. The fact that a limitation is prescribed does not mean that application of Section 5 of the Limitation Act is excluded from the purview of the section disabling the Presiding Officer from applying the same when invoked. It is well settled that unless a specific prohibition is there in the Section itself Section 5 of the new Limitation Act will apply (vide Arya Vysia Samajam v. Murugesa Mudaliar, 1990 TNLJ 82. The ratio laid down in the above case squarely applies to the facts of this case. Accordingly, we find there is no substance in the argument of the learned Additional Government Pleader. Consequently, the revision fails and is dismissed. No costs.”
Here again, it has to be pointed out that the statute has not prescribed the number of days only during when the delay can be condoned.
20. Learned counsel also referred to the following rulings:-
I.N N. Balakrishnan v. M. Krishnamurthy., AIR 1998 SC 3222; II. Sarathy v. State Bank of India SC, 2000 (3) CTC 552; III. Subramaniam. C. v. Tamil Nadu Housing Board, 2000 (3) CTC 727.
But, here again, we are constrained to point out that in all those cases, the relevant statute has not limited the period during which the delay can be condoned.
21. From the discussions made in paragraphs 8 to 16 supra, the legal position is that the appellant/Assistant Commissioner has no power to condone the delay, whatever may be the reason for the delay-, beyond 30 days over and above the period prescribed for filing appeal, i.e. 50 days from the date of receiving copy of the order. Consequently, it has to be held that the impugned orders passed by the appellant/Assistant Commissioner as well as Taxation Special Tribunal are legal and proper.
22. The prayer in the writ petition is to call for the records relating to the order dated 25.3.1999 passed by the Tamil Nadu Taxation Special Tribunal, viz., the 5th respondent herein in T.P No. 3091 of 1997 read with order dated 27.9.1990 in T.N.G.S.T No. 584757 of 89-90 issued by the third respondent and to quash the same and direct the respondent and pass orders on ‘merits after giving opportunity of hearing to the petitioner. In this case we have already held that the impugned orders are not liable to be set aside. Once this Court comes to such conclusion, then it would not be possible for this Court to direct the respondent/appellate authority to dispose of the appeal on merits and if such direction is given then it is nothing but this Court extending the period of limitation.
At this juncture, we would like to point out two rulings of the Constitutional Bench of Supreme Court, viz.,
(i) A.V Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani and another, AIR 1961 SC 1506, wherein the Supreme Court ruled thus,
“If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the Court dealing with his petition under Art. 226 to exercise its discretion in his favour.”
(ii) In Commissioner Of Sales Tax, U.P v. Modi Sugar Mills Ltd. , AIR 1961 SC 1047, while interpreting taxing statute, the Supreme Court observed thus,
“In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency.”
Of course, the learned counsel for the petitioner placed reliance on the Division Bench decision of this Court reported in Maheswari Fireworks Industries v. Commercial Tax Officer and others, 2001 STC (121) 272 and submitted that the High Court while exercising jurisdiction under Art. 226 of Constitution of India, even though appeal before the appellate authority was filed beyond 60 days (prescribed time of 30 days to file appeal + 30 days for which period alone appellate authority has power to condone) if the explanations offered by the assesses for not filing appeal within the said period are acceptable, then the High Court can direct the appellate authority to dispose of the appeal on merits. In the present case, the request of the petitioner is that the appellate authority may be directed to consider the appeal on merits and the assessee did not apply in time as the assessee had by then applied for exemption and was waiting for the orders from the Government and that the Government granted exemption for the year 1990-91. The fact that the request of the assessee was then under consideration by the Government, cannot be an acceptable explanation for not filing the appeal in time. That apart this court is of the view that the ruling of the Supreme Court reported in Union Of India v. Popular Construction Co.., 2001 (4) CTC 213, which came to be rendered after the ruling of the Division Bench of this Court has laid that once the statute prescribed the time limit, it cannot be extended further. In Maheswari Fireworks Industries v. Commercial Tax Officer and others, 2001 STC (121) 272, a Division Bench has ruled that the limitation prescribed under Section 31 of the Tamil Nadu General Sales Tax Act cannot be made applicable to the High Court while exercising jurisdiction under Article 226 of Constitution of India. In this case, we are not called upon to decide that issue. But the Question is whether on that basis this Court can direct the appellate authority to consider the appeal on merits after the expiry of prescribed time. In our considered view, this Court has no jurisdiction to pass such an order as otherwise it would be nothing but this Court re-writing the provisions of the Act in exercise of its powers under Article 226 of Constitution of India. This Court is also inclined to point out that the ruling of the Supreme Court viz. Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P, AIR 1976 SC 2161 and Commissioner Of Sales Tax, U.P v. Modi Sugar Mills Ltd. , AIR 1961 SC 1047 were not brought to the notice of that Division Bench.
23. The legal position is as follows:
(a) An appeal under Section 30(1) of the Tamil Nadu General Sales Tax Act, 1959 has to be filed within 30 days before the appellate Assistant Commissioner. The appellate Assistant Commissioner is empowered to condone the delay for further period of 30 days if sufficient cause for not presenting the appeal in time is shown and satisfied by the appellate authority.
(b) Under no circumstances, the appellate authority has power to condone the delay beyond 30 days.
(c) While the High Court exercising the jurisdiction under Article 226 of Constitution of India, approves the correctness of the order of the appellate authority, it has no power to direct the appellate authority to consider the appeal on merits as otherwise it would be nothing but Court extending the period of limitation.
(d) Even if the High Court accepts the explanation given by the assessee for not filing the appeal within the period prescribed under the Act, it cannot direct the appellate authority to consider the matter on merits as the High Court exercising jurisdiction under Article 226 of Constitution of India, cannot re-write the provisions of the Act.
24. In this view of the matter, this Court is of the opinion that the Writ Petition has to fail and consequently the Writ Petition is dismissed. Connected W.M.P, will stand closed.
25. The learned counsel for the petitioner submits that the petitioner is a Co-Operative Society and that it caters to the needs of only the workers and that the Government itself thought it fit to grant exemption and in fact granted exemption from 1990 onwards, and in those circumstances, the Court may be pleased to clarify that the dismissal of the writ petition will not stand in the way of Government granting any relief by virtue of powers conferred on it.
We examined the request of the petitioner and heard the respondent as well. We make it clear that the dismissal of the writ petition will not stand in the way of Government granting relief by virtue of powers conferred on it under law.
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